Published by The Lawfare Institute
in Cooperation With
The first time I had lunch with James Comey at the FBI, it was still early in his tenure as director. We walked from his office to the bureau’s cafeteria one floor up to get a sandwich for him and a salad for me. The director walking into the cafeteria was a big deal. Conversations stopped. Heads turned. In a comic irony to me that was, I’m sure, mortifying to her, the only person who did not seem to notice that Comey had entered the room was the young woman in front of him in the sandwich line. Watching from my vantage point at the salad bar, I saw this woman turn, realize who was behind her and become intensely flustered. Then I saw Comey refuse to cut the line and engage her in conversation while they waited. By the time they reached the front and ordered their sandwiches, she was chatting comfortably. I don’t know who this woman was (she did some kind of counterterrorism analysis, I believe I overheard her say), but I’m certain she remembers that day too.
As we walked back to his office, Comey explained that while he thought the world of his predecessor, Robert Mueller, he wanted to change the vertically integrated paramilitary culture of the FBI. Comey wanted to break down the cult of the director. He wanted people to speak more freely. It was important, he said, for him to be seen in the cafeteria, where Mueller almost never set foot. As part of this campaign of humanization, he told me, he was also mixing up shirt color; Mueller famously wore a white shirt every day and expected other men to do the same.
Baby steps, I thought.
It would be wrong of me to review Comey’s memoir, “A Higher Loyalty: Truth, Lies, and Leadership,” which came out Tuesday after an embargo that did not quite hold and after Comey’s explosive interview with George Stephanopoulos on Sunday. I am too associated with him to do so credibly. More importantly, I am also too connected to the events he describes, and to too many of the people he talks about, to do so in a detached fashion. What’s more, a fair bit of the material he describes in the last section of the book initially became public because I made it public. So I am not going to assess the book, say whether people should read it, or get into the debate over whether this is or is not a good “look” for Comey. I leave those discussions to others. Instead, I offer here a few reflections on the book—things that were salient to me as I read it but that I suspect reviewers will not focus on. I am supplementing them, as need be, with my own memories and observations.
My broad point is a simple one: One of the inherent features of no-win situations is that someone loses. Colleagues may understand what you did because they trust you. If you’re lucky, so may your boss. But when something terrible happens, the public will need to assign blame. This is inevitable, and assuming that burden is part of leadership.
Comey will, I suspect, spend the rest of his life answering questions about why he did what he did during the 2016 election cycle. In many respects, I don’t consider that a problem. But in one critical respect, it is a problem: Our collective focus on the Comey question erodes our focus on the crisis before us. It makes complicated what is not complicated—as the reaction to Comey’s book vividly illustrates.
The last time I had lunch with Comey at the FBI—March 27, 2017—we again went to the cafeteria. This time, it was not an especially big deal when we entered. A lot of people said hello to Comey, and it thus took a while to move through the room. But nobody was shocked to see him. Conversations didn’t trail off. There were two therapy dogs in the cafeteria, and Comey stopped to pet them and chat with their handlers, who didn’t even get up. Less than four years after he had set out to humanize the directorship, it was the most natural thing in the world for the FBI director to know the women who handled the therapy dogs in the cafeteria.
I was amused while reading the book to find that Comey’s effort at cultural change at the FBI was important enough to him to merit considerable discussion:
Whenever I possibly could during my three years, eight months and five days as FBI director, I walked down a long hall and up a flight of stairs to the FBI headquarters cafeteria. I never wore my jacket. I asked my security detail to stay far enough away from me that people would think I was walking alone. I didn’t want FBI employees to think I needed to be protected from them.
No matter how I felt inside, I tried to walk with a bounce in my step, standing straight and smiling at those I passed. The way I looked at it, when the director of the FBI stepped into that cafeteria, hundreds of pairs of eyes turned to look, and every pair was asking, in some form, the same question: “So how are we doing?” The answer from my face and posture had to be: “We’re doing just fine. It’s all going to be okay.”
I also never cut the line. Even when I wished I could, or even when I was in a hurry. I stood and waited as people in front of me ordered panini (which take forever, by the way). I thought it was very important to show people that I’m not better than anyone else. So I waited.
The wait line allowed me to interview people. I would turn to the person next to me and ask them to tell me their story, including what they liked about their job at the FBI.
Comey is a controversial figure in the American political system—reviled by many on both the left and the right. He is the subject of a vicious smear campaign directed by the president of the United States and institutionally orchestrated by the Republican Party. Many Democrats, meanwhile, blame him for the presidency of the man who is attacking him.
Yet it is important to understand that inside FBI headquarters and at field offices around the country, Comey is not a controversial figure. He is deeply beloved. As former FBI counterterrorism analyst Nora Ellingsen, who talked to around 20 of her former colleagues after Comey was fired last year, wrote in Lawfare:
Nearly everyone loved him.
. . .
Several employees spoke of Director Comey as a kind of father figure, and equated his leaving the organization with the death of a family member. They described him as a leader who acted on a daily basis with the utmost integrity. He pushed his employees to realize their own potential and leadership capabilities. By all accounts, he was working to turn, very slowly, a massive bureaucratic ship and change the organizational culture of the Bureau—and had the full support, if not always the agreement, of those who worked for him…
In most of my conversations, I finally had to ask the question, “Do you know, or have you at least heard of, any employees who didn’t support and love working for Director Comey?” While there were a few employees who told me that they had heard of someone in X unit or on Y squad who supported the firing, no one I spoke with had met these unicorns directly.
This is different from the rank-and-file’s attitude toward Mueller, who is, as best as I can tell, almost uniformly admired and respected—but in the more distant fashion in which one sees a leader to whom one would be afraid to speak and would be forever mortified to disappoint. For Comey, by contrast, there is a lot of affection. The FBI workforce is that young woman in the sandwich line who went from awe at the 6-foot, 8-inch man towering in back of her to amiably chatting with him.
But herein lies the paradox of Comey’s campaign to humanize the directorship: Ultimately, the cult of the directorship didn’t really wither under Comey. It just changed to be more like him. His efforts to break it down—which were sincere and genuinely effective and had many salutary effects, I’m sure, in terms of the FBI’s ability to self-evaluate and listen better to the communities it serves and to its own workforce—did not end up making the directorship any less a personification of the bureau. If you doubt that, just read the internal mourning after President Trump fired the man. In both his testimony to the Senate intelligence committee and in his book, Comey expresses anger that he never had a chance to say goodbye to the FBI workforce. A great many people who worked for him share that anger. I share that anger just from having spent time with him in the FBI cafeteria and watching his interactions with staff. Comey personified the FBI every bit as much as Mueller did.
Comey’s efforts to break down the cult of the directorship—its successes and its limitations—offer an interesting window into one of the larger themes he struggles with in this book: the effort to insulate the FBI from the perception of intervention in politics when it is investigating both major parties’ presidential nominees during an election campaign. This, perhaps unsurprisingly, turns out to have been even more impossible than eliminating the cult of the directorship. However earnestly one tries, the effort to act apolitically will be understood as politicization. The explanations one then offers of one’s conduct and thinking will be interpreted as ego-driven self-justification. The steps one takes to keep the bureau out of politics in such a situation—however sincere, however open—become politicization.
The problem reminds me of Kierkegaard’s famous passage on marriage:
If you marry, you will regret it; if you do not marry, you will also regret it. . . . Laugh at the world’s follies, you will regret it; weep over them and you will also regret that. . . . . Hang yourself, you will regret it, do not hang yourself, and you will also regret that; hang yourself or do not hang yourself, you will regret both. . . . This, gentlemen, is the sum and substance of all philosophy.
That the steps designed to keep the FBI out of politics—and perceived as out of politics—will themselves be taken as political acts is not a reason not to undertake the effort. The effort itself is a sacred trust. But it is a reason to understand the inherent limits of the undertaking. Charge Hillary Clinton and you will regret it. Don’t charge her and you will regret that too. Explain your reasoning and you will regret it. Don’t explain your reasoning and you will regret it. Inform Congress of your actions immediately before an election, and you will regret that. Don’t inform Congress and you will regret that too. I don’t know if this is the sum and substance of all philosophy, but it is a good rule of thumb: The steps you take to remain apolitical will make you political.
Or as Comey describes it in the book:
“You know you are totally screwed, right?”
The FBI deputy director in the summer of 2015 was a plainspoken, smart, and darkly funny career special agent named Mark Giuliano.
I smiled tightly. “Yup,” I said. “Nobody gets out alive.”
In contrast to the famously tortured Kierkegaard, Comey describes it as liberating to accept in advance that there will be repercussions however one handles a fateful decision. But the problem—when that situation is not a personal one like marriage but a public one like investigating both presidential candidates—is that the decision maker won’t be the only one with regrets and retroactive doubts. The public will have them, too, and may judge the decision maker’s actions not just in light of the integrity of his or her processes and intentions but also in light of the action’s consequences. Indeed, the public may judge only in light of consequences. In doing so, the public will have the benefit of hindsight. And it will be ruthless.
It is very hard for people to accept that bad outcomes arrived at by decent people acting in good faith are merely that. People need to believe, for example, that George W. Bush lied the United States into war in Iraq—a proposition for which there is zero evidence. People don’t like multivariate causation either. There needs to be one explanation for Trump’s victory. If you’re not one of the people in the FBI cafeteria, people who have had cause to develop trust in institutional processes and in Comey himself, it is all too easy to personify the outcome in him.
It is a singular mark of the decency and moral seriousness of Barack Hussein Obama that he hasn’t fallen into this trap. One striking feature of Comey’s narrative is his evident admiration for Obama—as a leader, as a policy thinker and as a person. The right-wing fever swamp is likely to react to this with an “of course,” having already priced Comey in as part of the Hillary-Obama-left-elite conspiracy against the president. That would be wrong. The relationship is surprising. Comey and Obama come from very different worlds politically. Comey was surprised that Obama would seriously consider him to run the FBI. He criticizes Obama at points in the book, such as for declaring publicly that Clinton had not damaged national security with her private email server. He also ruminates on whether Obama was overly confident intellectually. But the broader portrayal is extremely flattering. He praises the way Obama never sought a close relationship with him and contrasts this sharply with Trump’s attempts to cultivate a patronage relationship with him. He praises at length the way that Obama listens. And when he recounts their final meeting, the emotion is still fresh:
President Obama then leaned forward, forearms on his knees. He started with a long preamble, explaining that he wasn’t going to talk to me about any particular case or investigation.
“I just want to tell you something,” he said.
“I picked you to be the FBI director because of your integrity and your ability,” he said. Then he added something that struck me as remarkable.
“I want you to know that nothing—nothing—has happened in the last year to change my view.”
He wasn’t telling me he agreed with my decisions. He wasn’t talking about the decisions. He was saying he understood where they came from. Boy, were those words I needed to hear.
I felt a wave of emotion, almost to the verge of tears. President Obama was not an outwardly emotional man in these kinds of meetings, but still I spoke in unusually emotional terms to him.
“That means a lot to me, Mr. President. I have hated the last year. The last thing we want is to be involved in an election. I’m just trying to do the right thing.”
“I know, I know,” he said.
When Comey first told me about this interaction, he emphasized his gratitude for a particular nuance in the exchange: Obama’s emphasis that his comments applied to all investigations, not any particular one. Presidents, after all, shouldn’t be talking to FBI directors about specific investigative matters. And it moved Comey that Obama, even in an emotional moment in which it would have been easy to blame him and get specific, understood and respected that.
Obama, incidentally, has been careful with his public words as well. Like so many people in the FBI, he has reason to have confidence in the integrity of Comey’s decision making—if not to agree with his decisions—and that is disciplining in alleviating the Kierkegaardian problem.
The general public does not have the benefit—or, if you prefer, the biasing influence of proximity—that either the people in the FBI cafeteria or Obama have in developing confidence in Comey’s integrity to ameliorate the instinct to retroactively second-guess. This is a problem not because it causes an unfair judgment of Comey—who is a big boy and can take it—but because the obsessive focus on his decision making in the Clinton email investigation consistently distracts attention from the crisis at hand.
For a lot of readers, the easy part of the book will be Comey’s discussion of his interactions with Trump. There is no moral complexity here. There are no serious questions of whether Comey should have behaved differently—not in the macro sense, at least. There is only the question of whether one believes Comey or Trump about the nature of their interactions. And to pose that question is also to answer it. One of them is a man who, whatever his flaws, is not a liar and who has numerous contemporaneous corroborating witnesses and documents. The other is Donald Trump. I suppose another question is whether one believes the president’s behavior as described by Comey is acceptable. But to ask that question is to answer it too. Of course Comey is telling the truth. And of course the president’s conduct is not acceptable.
I believed long before Trump became president that, if he were elected, he would fire Comey. I warned about the possibility publicly—more than once. As early as March 2016 I wrote: “Yes, Trump might develop a problem with our redoubtable FBI director, who doesn't leave with the outgoing administration and has stared down a president once before. But so what? Bill Clinton didn't get along with his FBI director either. Comey will not be there forever anyway.” Two days after the election, Lawfare’s Susan Hennessey and I wrote:
Trump has the authority to fire the FBI Director, even without cause, though it goes against custom.
. . .
In short, while it is technically within the presidential power to fire an FBI Director, it is not something anyone should perceive as normal. Were Trump to fire Comey it would be a serious aberration; if he were to do so for mere political preference, in retaliation for Comey’s professional judgment that Clinton should not be prosecuted, or out of fear of Comey’s independence it would strike a blow against an important check on the modern presidency. And nobody who believes in the rule of law, even those most angry at Comey, should be hoping for it right now.
I believed that Trump would fire Comey because it was clear who Trump is, and I knew who Comey is. I had a feeling they could not coexist. A tyranny cannot have independent law enforcement and remain an effective tyranny. A would-be tyrant thus must purge government of law enforcement that would be independent. He simply must get the law enforcement apparatus under his control—that is, protecting his friends and himself and arrayed against his enemies. I did not know who would be the Trump administration’s attorney general or deputy attorney general. But I knew that Trump would not be able to get law enforcement under his control with Comey in office—so I worried that he would remove Comey sooner or later. That this came to pass, and quickly, is not a reflection of my prescience. It is a reflection of what Comey, in his testimony to the Senate intelligence committee, called “the nature of the person.”
This is the story line on which the public should focus—on which, indeed, focus is democratically imperative. This story line continues to this day in the president’s threats to Deputy Attorney General Rod Rosenstein and Special Counsel Bob Mueller, in the possibility of pardons for major witnesses, and in the vicious smears of career law enforcement officials and the sliming of the attorney general for the supposedly iniquitous crime of recusing himself from an investigation in which his conflicts were both manifest and manifold.
Yet the public discussion of Comey, his book and his public presence does not manage to focus on this story line. And this is one of the great tragedies of the Clinton email investigation.
Because for many Democrats—convinced as they are that Comey is responsible for Trump’s election—it is at most a secondary tragedy. But the primary one in their minds is a hypothesis, not a fact. And it’s an inherently unprovable hypothesis at that. Even Nate Silver, who has argued strongly that Comey’s letter to Congress “probably” cost Clinton the election, acknowledges that before the letter “Clinton was in a danger zone: Her lead wasn’t quite large enough to be truly safe, but it was large enough to make people mistakenly think it was.”
In fact, on the day that Comey issued his letter, Oct. 28, 2016, Silver’s FiveThirtyEight site gave Trump a 20.2 percent chance of winning in its “polls-plus” forecast. On Election Day, it gave him a 28.2 percent chance of winning. I would never argue that the Comey letter did not impact the outcome. But it is a mug’s game to speculate about whether Trump’s victory took place in the eight-point delta between a 20 percent likelihood and a 28 percent likelihood. Things with a one-in-five chance of happening happen many times a day—almost as often as things with a 28 percent chance of happening.
I also would never argue that Comey made no mistakes in his handling of the 2016 election investigations. Indeed, I expressed public anxieties about the fairness of his July 2016 statement ending the email investigation at the time he made it. Matthew Miller did so too, and less equivocally, but he and I were lonely voices then. At that point, most commentators discussed the statement only in terms of whom it would help or hurt in the election. Was it a Clinton win because the investigation was over and there would be no charges? Or was it a Trump win because Comey had criticized her conduct? Most people discovered their concerns only in October, and by then the concerns—after ripening over months with a healthy dose of hindsight bias—had turned to outrage.
And it was a rather selective outrage, one that ignored an important feature of the story: the conduct of the U.S. attorney general. Loretta Lynch was a compromised figure with respect to the emails “matter.” There was classified material that, almost certainly falsely, impugned her conduct with respect to the investigation; Russian hackers had stolen emails from a Democratic operative suggesting that she would keep control of the investigation and prevent it from getting far. Then, to make matters worse, she allowed Bill Clinton to get on her plane in June 2016 while the Justice Department was getting ready to end the investigation of his wife, sparking a firestorm. Yet Lynch refused to recuse herself, even as she also said she would accept the recommendations of her investigative team—a kind of non-recusal recusal that all but guaranteed that the investigation would not close credibly. Her deputy, Sally Yates, did not persuade her to step aside. In October, when Comey decided to inform Congress of new investigative steps, both women contented themselves with staff-level messages objecting. And Lynch responded after the letter in a fashion that suggests she was only too happy to have Comey fall on this particular grenade. Comey writes about a private exchange with Lynch following a wider staff meeting. After the others had been dismissed, she offered him an awkward hug and asked a surprising question: “Would they feel better if it leaked on November 4?” After commiserating privately for a few minutes, she held the door open for him and told him, “Try to look beat up.”
Comey told me this story shortly after it happened, and for a lot of reasons, it has bothered me ever since. Partly because of it, I very much look forward to how the forthcoming inspector general’s report on the Clinton email investigation treats the attorney general, a matter Jack Goldsmith and I discussed at some length at the time Comey acted. (Lynch’s statement issued the other day addresses substantially none of the questions a reasonable person might have about her own handling of the Clinton email matter.)
For present purposes, however, my point is simply that if you believe that the Justice Department’s Clinton email investigation was a train wreck that cost Hillary Clinton the election, the problem lies not only in what Comey did but also in what others did not do. It is easy to focus on Comey’s various actions. The full picture, however, involves decisions by others—particularly Lynch—not to take responsibility for things.
At the end of the day, I don’t know what I think of how Comey handled the Clinton email investigation. I go back and forth about whether the best of bad options worked out badly or whether this was a string of bad moves and unforced errors. My concern is that an inability to see whatever errors Comey made as the good-faith failings of a decent man trying his best under extraordinary circumstances affects the ability to process his interactions with Trump. Inevitably, your view of the Comey-Clinton story affects your ability to focus on the Comey-Trump story. It’s hard to focus on the Comey-Trump story if you believe the Comey-Clinton story is one of—at the extreme—partisan intervention by the FBI on Trump’s behalf. It’s hard if you believe it was a story of ego-driven showboating and moral vanity on the part of a man who loves the spotlight. It’s hard if you convince yourself that Comey’s action affected the outcome of the election. It’s really hard if you’ve persuaded yourself to ignore the many other factors that contributed to Clinton’s loss and Trump’s win—and all the other factors that contributed to the Justice Department’s handling of this particular case. It’s also really hard if you’re not open to grappling with the Kierkegaardian reality that Comey faced.
In the days since book excerpts leaked and Comey began giving interviews, reactions have focused—maddeningly in my view—on a few disparaging comments Comey made in passing about Trump’s appearance and about his purported admission that he acted politically in writing to Congress on Oct. 28, 2016. That there is no such admission (the passage in question says something quite different) deters neither left nor right in considering it some kind of smoking gun. That the references to Trump’s hand size and skin tone are fleeting moments in a long book has stopped nary a commentator from declaring that Comey has sunk to the level of a president who tweets ad hominem insults by the fistful. These things are not what’s important. Nor are they what we should be talking about right now.
Shortly after the election, I had lunch with Comey in his office. After we went to the cafeteria to get food, I asked how he was doing and, in a prelude to his “mildly nauseous” testimony, he said that he felt sick every time he thought that the FBI, or he personally, might have played a role in influencing the election’s outcome. He talked about how Obama had instructed his national security team to give every possible cooperation to the incoming Trump team, saying that the transition George W. Bush had supervised for him was picture-perfect, that it was a real gift from his predecessor, and that it was important to him to do the same for his successor. Comey had been moved by this.
I asked if he intended to stay on under Trump, and Comey said that he did. He wasn’t going to offer his resignation, and if Trump asked for it, he said, he would not oblige. “If he wants to get rid of me, he’s going to have to fire me,” I recall him saying. This was before the Trump Tower meeting, before the loyalty-oath dinner. But Comey was steeling himself. There were investigations to supervise, to conduct and to protect. And there were all those people in the cafeteria, in the halls, in the file rooms and in the field offices who would need a firm layer of insulation from what was coming.
Comey didn’t say any of that. He didn’t need to.